OUTLAWED MANUAL SCAVENGING PRACTICE LEADS SIGNIFICANT DEATH IN INDIA

“Without education, wisdom was lost,

Without wisdom, morals were lost,

Without morals, development was lost,

Without development, wealth was lost,

Without wealth, the Shudras were ruined,

So much has happened through a lack of education.”

-Mahatma Jyotirao Phule

India is a democratic country in which fundamental rights are guaranteed under part III of the constitution of India. An essential aspect of any successful democracy is its commitment to the protection of deliberative dialogue. The fine balance between majatorian and liberal democratic governance is marked by constitutional principles wedded to the rule of law, the guarantee of individual freedoms, and ensuring freedom from discrimination. The true test of democracy is its ability to ensure the creation and protection of spaces where every individual can voice their opinion without fear of retribution. The Fundamental Rights are intended not only to protect individual's’ rights but they are based on high public policy. Liberty of the individual and protection of the fundamental rights is the very essence of the democratic way of life adopted by the constitution, and it is the privilege and duty of these courts to uphold those rights. Every individual was guaranteed and the free exercise of individual rights for the fulfillment of nay end considered being of fitting value to them. The preamble of India gives freedom to live liberal life with dignity still there is a contrast situation of manual Scavengers practiced in India “Manual Scavenging is a kind of slavery in which a person cleans human and animal excreta with their bare hands for their means of life”. This practice is continued for 3000 years in India. People engaged in manual scavengings such as Valmiki, Mehatar, Dom, Bhangi, Ghasi, Olgna Hela and Khorare compelled to perform the task of cleaning human excreta with their bare hands or clean sewer line and septic tanks, etc. The constitution enacted a complete ban on untouchability and its practice in any form under Art.17.

Manual Scavenging was outlawed in India 25 years ago. The job being an epitome of social injustice has resulted in the death of many who get asphyxiated after being exposed to harmful gases. At least 50 people died cleaning sewers in the first six months of 2019. In a country like Europe, such practice took place but it was not based on the caste system and workers are called “Night soil Collector “or “Nightmen”and gong farmers were used.

History of Manual Scavengers in Ancient Period

In India, caste has a lot of Importance. In the Hindu religion, there are four types of Varnas. Brahmanical society was considered to be borne by the mouth of Brahma, the Kshatriya from arms, Vysian from the thighs, and at last Shudras from the legs of Bramha. So the Shudras were considered as lower caste people and they were forced to do dirty works for above three varna’s people. This caste-based social organization is governed by custom. In ancient times there were no toilets and Bhramin, Vaishya and Kshatriya forced to Shudras to clean the human excreta and collect that excreta. This slavery work was assigned in “Nardiya Samhitha” Puran. Manual Scavenging is one of the slavery duties out of 15 duties of Shudras. The occupation was based on caste and not on intelligence. These three classes of people were compelled to the Shudras to do such filthy work. This work continued since 3000 years back i.e. from the Buddhist and Maurya periods also. Under the rule of pesewa in the Maratha country, the untouchables were not allowed to use public streets. If a Hindu was coming along lest he should pollute the Hindu by his shadow. The untouchables were required to have black thread either on his wrist or in his neck as a sign or a mark to prevent the Hindu’s from getting themselves polluted by his touch. On Poona, The capital of pesewa, the untouchables were required to carry, strung from his waist a broom to sweep away from behind the dust. He treaded on least a Hindu walking on the same should be polluted. The caste system will not allow Hindu to take occupations where they are wanted if they do not belong to them by heredity. So the work assigned to Shudras was considered filthy by Hindu’s so that they called Shudras untouchables.

History of Manual Scavengers in the Modern period

Since the ancient period, the practice is still going on. Still, people follow some divine based discriminatory laws. People are appointed based on caste for such type of work. In the constituent Assembly debate on Article 17, the framers of the constitution dealt with this feature in two ways. They provided for withholding legal recognition to this form of social discrimination and for punishing such discrimination as an offense. Art. 17 supplement the general aspiration of the constitution for equality and therefore finds place just after the Art 14,15,16,18. Untouchability is evil based on social discrimination on the ground of caste and descent and since the concept of equality forbids discrimination the theme of the Art. 17 is part of the general scheme of Equality enshrined in the constitution. It is the constitutional obligation of the state to take the necessary steps to interdict any violation and ensure the observance of the Fundamental Rights by the private individual who is transgressing the scene.

1. 35(a) (ii) of the constitution vests in the parliament power to make laws prescribing punishment for those acts which are declared offense under Part Three of Constitution of India. Within the five years of the adoption of the constitution of India, The untouchability (offense) Act 1955 was enacted by the parliament. In 1993, India enacted the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993. This act banned the employment of people as manual scavengers. This act provided for imprisonment of up to In 2013, new legislation in the form of the manual scavengers act was passed which seek to reinforce this ban by prohibiting manual scavenging in all forms and ensures the rehabilitation of manual scavengers to be identified through the mandatory survey. Despite progress, manual scavenging persists in India. So this inhuman treatment is still going on in the 21st century. Still, people are working as manual scavengers and their caste is still the same. India got Independence before the 70 century from the British but still some targeted people don’t get freedom from such type of work.

Analysis of the concept of Justice by Modern Indian thinker

Rajashree Shahu Maharaj on distributive justice in India

In the Ancient period, philosophers interpreted the term justice in several ways contextual to societal culture, the status of legal development, and flux of socio political ideas. In our ancient culture concept of ‘Dharma” was interpreted in a broad sense connoting duty, responsibility, righteousness, virtue, truth, and justice. In the Ancient period, thinkers believed in, the entire world rests on dharma. Dharma refers to the order set by nature and the adherence of human beings to such natural order. Dharma includes the concept of justice. The philosophy of Dharma is found to encode in various ancient Hindu texts known as “Dharmashashtra” one of the Dharmashastra is “Nardiya Samhita” It consists of both substantive as well as procedural law. According to these dharma shastra, 15 duties of slaves were mentioned. Out of 15 slavery duties, one duty is Manual Scavenging which was based upon the caste and Varna system. This manual scavenging practice was codified under dharmasastra so people were compelled to work this slavery duty. This caste-based duty was unfair and based on discrimination. This dharmasastra was lacking equality, liberty principle. People were suffering from tremendous injustice for 3000 years due to this dharmasastra based law. Shahuji was anointed the king of Kolhapur on 2 July 1894. On 2 July 1902, he decided for the welfare of the scheduled caste and scheduled tribe to provide social justice to depressed class people. He took the steps to improve the life of a depressed society. Until 1919 depressed class people could not access hospitals so in 1919 Shahu Maharaj had passed a declaration that any class of people could access hospitals and could get treatment. No one could be discriminated against based on caste and religion. His philosophy was based on equality and equal distribution of natural resources. He interpreted the term justice with the help of the principle of liberty equality and fairness. He also believed in individual dignity so in the 1919 issued order that depresses class people working in the government; he should be treated with dignity and respect. In the modern period of India, he introduced the principle of justice which is based on equality, liberty, fairness, and dignity. His philosophy was given social and economic justice to depressed class people. He also introduced the distributive justice concept in India, in 1917 he repeals the balutedari system and given the piece of land to depressed class person. In 1918 he repealed the vatandari system absolutely and introduced land reform and enabled the depressed class to become the owner of the land. This ended the economic slavery of the depressed class. He invented the Distributive principle in 1918. So the philosophy of Shahu maharaja leads us to understand justice as fairness, equal liberty for all, fair equality of opportunity. He gave importance to social justice which is based upon the morality of the individual instead of giving importance to divine based social justice.

Dr.Ambedkar’s philosophy on Social Justice in India

Dr.Babasaheb Ambedkar played important role in the drafting of the constitution of India and made up it with his social philosophy.Dr.Babasaheb Ambedkar devoted his life to abolishing such caste discrimination in Indian society.Dr. B.R Ambedkar said the caste system lays the foundation of discrimination in the society which weakens the social fiber and results in injustice. Dr.Babasaheb Ambedkar's social justice is based on various principles like Equality, Liberty, and fraternity. Equality denotes cooperation with each other; Liberty means freedom of speech and expression while fraternity means brotherhood among all individuals. These principles give unity to social life. Another aspect of social justice is the supremacy of constitutional rules, the principle of natural justice, distributive principle, equality principle, and faith in the value of an individual’s dignity. According to B.R Ambedkar Social justice is not only related to money but also liberty, the dignity of individuals. Dr.Ambedkar recognizes the need for morality and legal consideration for the concept of social justice. According to him, justice is based upon individual values like equality, liberty, and fraternity. According to him, every individual should respect each other. Our constitution is Social democratic and the preamble of the constitution of India gives us a way to live with liberty, equality, and fraternity.

Dr.Ambedkars view on Hindu Dharmashashtra and According to him Hindu dharma is based on varnavyavstha.and this religion is believed that the caste system is divine and not man-made. This system upholds the gradation and ranking system. This grading system is based on the inequality principle. Shudra was the lower rank community according to Hindu Dharmashastra. This varna vyvastha leads to social injustice with people who are considered as Shudras. Dr.Babasaheb Ambedkar pointed out that these dharma shastra codified rules and regulations and treated them as a religious sanction and it became customary laws. Manual Scavenging is one of these types of practice that is codified in the Nardiya Samhita which leads to social injustice. Dr.Ambedkar critically analyzed caste-based occupation in which occupation denies developing individual’s opportunity to work as per his capacity and skill such laws denies him the justice to work with his choice. According to him caste system never gives the choice to choose occupation as per individual’s choice. This caste system is an obstacle to the development of individual life. To achieve social justice for Shudras he rejected the varna vyavastha because varnvyvastha oppose the essence of social justice. According to Veda principle of justice means individuals have to perform his duties as mentioned in Dharmashastra. Dr.Ambedkar showed that many unfair restrictions are imposed on Shudras. Hindu people were aware of such injustice but didn’t dare to oppose such injustice because of Dharmashastra. Dr. Ambedkar pointed out that untouchability and caste-based occupations are examples of a lack of social injustice. According to him social justice, equality, and liberty, fraternity entailed social democracy. India is a social-democratic country means each individual should respect each other. It also results in the denial of basic human rights to life guaranteed by the constitution is not just a lifelike inanimate thing. It is a guarantee to live a dignified human life. The time has come for India to understand that justice must not be only done but must be seen and experienced. Hence we need to draw on Dr.Babasaheb Ambedkar's social philosophy in our effort to eradicate manual scavenging practice. Everywhere they treated inhumanly and social stigma people attack their dignity every day. So to give them social justice there is a need for abolition of complete manual scavenging practice. It is difficult to define social justice but social justice means the preservation of the fundamental rights of every person. It deals with individuals who are intentionally made the victim of injustice, untouchability, social exclusion. Social justice means to criticize the customary laws, traditions which lead to injustice. liberalism means that people order their actions as they think fit without asking leave, or depending on the will of any other men. Thinkers from lock to Rawls agreed on the fundamental liberal principle.

John Rawls on Fair, Just and equal principle

On the other hand, refers to Rawls's theory of justice leads to understanding justice as fairness, Distribution theory to provide fair equality of opportunity and benefits of least advantaged. so the nature of these principles is of universal relevance. Johns Rawls recommends equal basic rights; equality of opportunity, and promoting the interests of the least advantaged members of society According to this theory interest of Manual scavengers should be promoted and protected. The principle of John Rawls is very needed in the present situation for the welfare of the Manual scavengers and to preserve the basic rights of every individual. But for 3000 years some people are doing such inhuman practice and significant death happening in India. To get justice there is a need for equality and to balance between the interest of depressed class people and other than depressed class people. So the interest of other people contradicting the interest of depressed people. This practice posing a serious challenge to the very concept of “Law and Justice”. India failed to give justice to depressed class people because of getting difficulties in accessing justice. In India, there is a need for a Veil of Ignorance theory to eradicate Manual scavenging practice. Because this practice has genes from NaradyaSamhita and still people believe in these practices. So to abolish this practice there is a need for a veil of Ignorance then and then only this practice will eliminate. To achieve justice there is a need for a veil of ignorance but India has a deep root of caste and it is impossible to abolish caste systems in India. Veil of Ignorance is a hypothetical situation and it will not be useful to manual scavengers to achieve justice. To achieve justice there is only one option to leave the religion. If manual scavengers leave the religion then and then only they will get freedom from such work.

Various difficulties lead to injustice with Manual scavengers.

1. Difficulty in accessing the criminal justice system- Due to discrimination, the depressed class requires significant assistance in accessing the criminal justice system. Victims of such crime face Inaction from police and refusals to investigate their complaints. The people s union for democratic rights PUDR has released a study on manual scavenging deaths that have taken place in Delhi over the last two years. The activist has found that while the narrative of compensation is encouraged even by the state, there is little to no focus on fixing criminal culpability.

2. Difficulties in accessing social justice. Society has also never done anything to tackle this problem. There is a need to go amidst the people who work as a manual scavenger and convince them that what they are doing is wrong.Dr.B R Ambedkar said " Make slaves recognize slavery, they will break their chains"

3. Inadequate survey and failure to identify people still engaged in manual scavenging because of the inadequate definition of Manual Scavenging under “The prohibition of employment as manual scavengers and their rehabilitation Act, 2013 this covers only four areas like the septic tank, Railway track, Dry latrines, Insanitary latrines but in reality, there are nine areas which should be considered under the definition of Manual Scavenging.

4. According to the Human Rights Watch report of 2014 they face pressure from a private contractor and compel them to do such practice otherwise they have to face social exclusion. Most scavengers have inherited the work from their generations. Economic and social deprivation for generations has given them little opportunity to be trained for something else. Those who try to challenge the situation are recorded with social ostracization, exclusion from village resources.

5. Lack of Absolute mechanism in such type of practice.

Conclusion:

In India, there is a significant relationship between occupation and social status. There is a relationship between scavenger practice and cast.No other country does this work manually except India. European country does this work with the help of some workmen called Night Soil Men but they are not appointed based on the cast. Genes of this practice are from dharma shastra (Nardiya Sanmhitha) so practice is still going on. Manual scavenging is banned in 1993 and for the violation of the provision, a person would be liable for one-year imprisonment and a fine up to 2000 Rs. But yet no one punished. The prohibition of employment as manual scavengers and their rehabilitation Act 2013 is for the prohibition of Manual scavenging and to rehabilitate them and on the failure of this act person would liable for 2 years imprisonment up to 5 years and 50000 bond but still, 2020 people are dying due to such inhuman practice. These are happening because government machinery failed to implement the PEMS Act of 2013. In 2013 Supreme Court directed to the central government to identified manual scavenger but under this act, the definition covers only septic tank, Dry latrines, and insanitary lanterns but there are other areas in which manual scavenger’s works but they don’t consider as Manual Scavengers. So the definition is insufficient under the PEMS Act 2013 to identify manual scavengers data. The complete absence of automated machines. In recent years these include commitments to moderate sanitation so there no further need for manual disposal of feces, and a prohibition on engaging anyone to do this work. However, because these policies are not properly implemented, people remain unaware of their right to refuse this role. this leads injustice to manual scavengers.

Suggestion And Recommendation

To provide Automated Machine to clean human excreta.

Awareness among these people about slavery work. This is a very important idea to convince manual scavengers that they are slaves and if they leave the practice of slavery they can become free blessed, they can do any work and live life their own choice there is need to focus on fixing criminal culpability -which could go a long way in ensuring that those hiring manual scavengers to clean sewers or septic tanks are more careful and abide by the law.

To implement laws to abolish manual scavenging practice.2

To broaden the definition of Manual Scavengers and include other areas like….

Author - Adv. Pramodini Kadam