Ten years after a PIL was filed against the
Indian Railways as the biggest violator of the Manual Scavengers
Prohibition Act with 172,000 open discharge toilets, the ministry
continues to deny the practice of manual scavenging. This article traces
the journey of the petition.
It is a
medium close-up shot. A railway track cuts diagonally through the
photograph. The symmetry is sharp and unmistakable. Overpowering this
symmetry, however, is the human symmetry of Suresh and Ratanlal
positioned next to each other in between the two rail tracks.
The long brushes of Suresh’s broom and the high-pressured stream from
Ratanlal’s water jet too are in symmetry. Ratanlal attacks the excreta
with the water jet while Suresh brushes aside the discharge. Both men,
hunched forward, their pants rolled up till their knees, are coordinated
in their bid to rid the tracks of human excrement issued from open
discharge toilets of the Indian Railways.
The text adjacent to the photograph of Suresh (aged 35) and Ratanlal
(aged 47), in the 2005 counter-affidavit filed by the petitioners Safai
Karamchari Andolan (SKA) and others, states that both men, permanent
employees at Delhi Sarai Railway Station, earn Rs 8,000 a month. Both
received an education till Class 10. Both have young children. And both
suffer from skin allergies.
No uniform. No shoes. Suresh and Ratanlal are not alone. Other
photographs in the affidavit capture Anil (aged 26) and Hari Shankar
(aged 28) at platform number nine, Old Delhi Railway Station; contract
workers Suguna (Rs 2,300 per month) and Sunganthala (Rs 1,800 per month)
at platform number 5 and 7, Egmore Railway Station, Chennai; Chedilal
and Suraj Bhan, who have been manually handling human waste at the
Ludhiana Railway Station for 13 and 20 years, respectively. These
individuals dispose of faecal discharge from the railway tracks either
as permanent employees or as contract workers.
Since the days of the British Raj, Indian Railways has continued to
unapologetically exploit the cheap labour of ‘manual scavengers’
(hereafter safai karamcharis) for the everyday disposal of human
excrement directly discharged onto the rail tracks. With its 43,000
passenger coaches, more than 8,000 stations, 172,000 toilets and a dense
network of tracks, the railways is the biggest violator of the dignity
of people condemned by caste to manual scavenging.
Deeply entrenched in the stranglehold of the caste structure, manual
scavenging is closely intertwined with untouchability. Barring a few
exceptions, all manual scavengers are from scheduled caste (SC)
families, and a majority are women.
2013 marks the completion of the tenth year of the public interest
litigation (PIL) initiated by SKA against the Indian Railways in the
Supreme Court and subsequently in the Delhi High Court. The only thing
that’s changed in the last decade is the advocates, bench of judges and
the ‘modernising’ face of the railways. The Ministry of Railways’
consistent denial of manual scavenging and the petitioners’ unwavering
resolve to restore dignity to the safai karamcharis remain determinedly
unchanged. This article traces the journey of the petition that is
pending in the Delhi High Court.
Denials
The Employment of Manual Scavengers and Construction of Dry Latrines
(Prohibition) Act outlawed manual scavenging in 1993. State governments
have always remained indifferent to the issue and have denied the
existence of manual scavenging. Against a background of painfully tardy
implementation of the 1993 Act, the continuing indignity and
untouchability resulting from such labour and the existence of dry
latrines was put forward in the Supreme Court as a PIL (Safai Karamchari
Andolan vs Union of India) in 2003. The legal whip of the Supreme
Court, the petitioners hoped, would push state governments out of their
indolence and galvanise efforts to eradicate the practice.
The petitioners -- Safai Karamchari Andolan (SKA) and six other
organisations striving for the eradication of manual scavenging --
sought, inter alia, strict implementation of the 1993 Act and stressed
the enforcement of fundamental rights as enshrined in Articles 14, 17,
19 and 21. The petition also made visible the invisible issue of
employment of safai karamcharis by defence establishments, the railways
and public sector undertakings (PSUs).
In response to the petition, a Supreme Court bench (in April 2005)
comprising Justices H K Sema and S N Variava directed all state
governments as well as ministries/corporations of the union government
to file an affidavit, within six months, through a senior officer in
charge of the matter and willing to take personal responsibility for the
veracity of the content of the affidavit regarding the state of manual
scavenging, utilisation of funds and number of people rehabilitated
since 1993. What came in six months later (November 2005) were
affidavits from states denying the existence of the practice.
The Ministry of Railways (MoR) in its 2004 affidavit presumptuously
stated that all dry latrines had been converted into aqua latrines
across the railways and that without provision of washable aprons at all
important stations, ‘manual scavenging cannot be totally eradicated’.
It further cited scarce resources and fund constraints as factors
limiting the upscale of better technology for toilets. “They got a
severe blasting from the Supreme Court for such a response,” says
Shomona Khanna, the advocate who represented the petitioners in the
Supreme Court till 2011. Sufficiently provoked, the court directed the
secretary of the Railways Board to file a detailed affidavit showing the
scheme prepared for the total elimination of manual scavenging.
In his 2006 affidavit, the secretary described the statement (‘manual
scavenging cannot be totally eradicated’) in the previous affidavit as
‘inaccurate’. This was an inane attempt at damage control since he, in
the same line, reasserted that the practice of manual scavenging in fact
did not exist in the railways. The ministry has, in fact, consistently
and stubbornly stuck to this statement even in the face of the damning
photographic evidence filed by the petitioners. The Supreme Court
refuses to take this as an answer.
Impasse
In her best-known work, On Photography, Susan Sontag, American
filmmaker and political activist, wrote: ‘Photographs furnish evidence.
Something we hear about, but doubt, seems proven when we’re shown a
photograph of it. In one version of its utility, the camera record
incriminates. In another version of its utility, the camera record
justifies.’ Sontag’s perceptive insight into the dual utility of the
photograph seamlessly explains the consciously different reading of the
photographic evidence by the Ministry of Railways.
For the petitioners, photographs of Suresh, Ratanlal and others make
for incriminating evidence against the ministry’s blind denial of manual
scavenging. However the ministry, by selectively harping on the
definition of manual scavenging in the 1993 Act, maintains that cleaning
the railway tracks with high pressure water jet technology (such as the
one in Ratanlal’s hands) does not qualify as manual scavenging.
Further, claiming the obsolescence of dry toilets across the railways,
the ministry declares manual scavenging to be a thing of the past. What
remains unacknowledged is Suresh’s broom and the tin plates in Suguna’s
hands, as well as the bucket into which Suguna is seen piling the
excrement, at platform number 5, Egmore Railway Station, Chennai.
Besides harping on the obsolescence of the practice of manual
scavenging and dry toilets across the railways, and that the ‘faecal
discharge disintegrates on its own’, the railways affidavits claim that
various technologies (sealed, bio and vacuum toilets) are under
consideration and that washable aprons and control discharge toilet
systems (CDTS) will be scaled up at important stations; that through
notices in train toilets, passengers are requested to avoid using
toilets at stations; and that the Ministry of Railways has always
maintained high standards in waste disposal and is aware of the need to
better manage the discharge from train toilets in the interests of
‘environmental protection’.
Angered at the casual mockery of their hard work, as reflected in the
ministry’s affidavits, the petitioners filed a damning point-wise
rebuttal in 2007. Under oath they argued that the ministry was
deliberately misleading the court and perverting the process of justice
with its outright lies. Fiercely opposing the ministry’s assertion that
no manual scavenging was taking place, the petitioners criticised the
‘modern face’ of the railways as premised on a foundation of oppression
and violation. They stressed that the ministry, by narrowly interpreting
the definition of manual scavenging in the 1993 Act, had knowingly
refused to acknowledge that manual scavenging is a violation of
fundamental rights and a statutory offence. The ministry continued to
unconscionably perceive the problem as a sanitation and environment
problem, not a gross violation of human dignity.
The petitioners’ affidavit affirmed that manual scavenging was
continuing unabated and negated the railways’ insistence that the use of
technologies such as water jets to clean railway tracks was not manual
scavenging. Based on their interactions with safai karamcharis at
railway stations, the petitioners argued that such technology was
usually not provided, or that the ‘powerful water jet’ was nothing more
than a water hose that required as much manual handling. “The pressure
of the jet often sends the excrement flying into the faces and bodies of
the safai karamcharis,” noted Girender Nath, staff member, National
Commission for Safai Karamcharis.
The new Bill on manual scavenging, while broadening the definition of
manual scavengers to encompass inter alia persons employed to dispose
of human excreta on the railway tracks, proposes that the same people,
if using protective gear, shall not be deemed ‘manual scavengers’. The
petitioners believe that no matter what protective gear is given to
people it will not mitigate their experience of severe social
marginalisation and discrimination.
The Planning Commission’s 2006 Working Group on Empowerment of
Scheduled Castes described manual scavenging as: “A gross violation of
human rights and the worth of the human person and flies in the face of
the Constitutional guarantee assured, in its very Preamble, of a life
with dignity for every individual in the country.”
The continuous stonewalling by the railways has stymied the
interpretative exercise in the courtroom. The affidavits show the
ministry’s lack of commitment and evasive approach towards fixing
targets and achieving time-bound rehabilitation. The petitioners
demanded that action be taken against the secretary of the Railways
Board who was incapable of making an accurate assessment of the
continuance of the practice, swore by a false affidavit, and insulted
the wisdom of the courts.
In 2011, the Supreme Court transferred a part (concerning Indian
Railways) of Safai Karamchari Andolan vs Union of India to the Delhi
High Court. Since then, the railways has come up with a new chant -–
bio-toilets.
Technologically speaking
Prior to the transfer of the case to the Delhi High Court, the
railways, over the years, has been discussing four major technological
innovations to limit manual handling of human excrement on the railway
tracks. These include concrete washable aprons, controlled discharge
toilet systems (CDTS), bio-toilets and vacuum toilets. The ministry
promised a scale-up of the first two options but has not seriously
considered vacuum toilets, popularly used in trains across Europe. It
has, however, unmistakably backed the installation of bio-toilets
(‘subject to the availability of funds’).
Intrigued, the high court ordered an inspection of bio-toilets led by
a team of senior advocates P S Narasimha and Rajiv Nanda. In their
status report to the court, the advocates described work on bio-toilet
installation as being extremely slow and criticised the Ministry of
Railway’s timid target of installing 500 bio-toilets (out of 172,000
toilets) till March 2012. They sought assistance from the Hazards
Centre, an organisation that maintains that technology cannot be
implemented in isolation. After an independent assessment of
bio-toilets, Hazards Centre found two major information loopholes in the
ministry’s claim that bio-toilets reduce excretal discharge into the
air and water: 1) omission and mention of slurry, a guaranteed
by-product of the process, which may or may not contain harmful
pathogens, and 2) no mention of potentially hazardous, gaseous
by-products such as methane or hydrogen sulphide.
The petitioners were unwilling to take the risk. Not wanting the
installation of bio-toilets to be a costly exercise and an environmental
hazard recklessly installed by the Indian Railways in the name of
liberation of manual scavengers, they requested the high court to
institute an interdisciplinary panel to investigate the feasibility,
design, financial and environmental sustainability of a range of
competent technological solutions (not just bio-toilets) that could be
installed in the railways.
The ministry’s haphazard efforts at exploring alternative solutions,
and persistent decade-long denial in acknowledging and identifying
manual scavengers employed by the railways is cause for serious concern.
Appallingly, every survey by the concerned departments and states
undertaken by the Ministry of Social Justice and Empowerment, or MSJE
(the nodal agency for the rehabilitation of manual scavengers) since the
enactment of the 1993 Act, has bypassed the Indian Railways.
Aware of the need to liberate safai karamcharis, the MSJE, in its
2011 affidavit to the Delhi High Court, asked the railways for a list of
manual scavengers eligible for rehabilitation benefits. The request was
an exercise in futility as the Ministry of Railways has consistently
denied the existence of the practice, thereby preventing safai
karamcharis and their dependants from accessing the rehabilitation
benefits they are entitled to.
“Even if we were to go by the extremely conservative estimate of two
manual scavengers per railway station, there are still 17,000 of them to
be liberated and rehabilitated. But we do not know who they are,” says
Khanna. Her concern -- to identify and consolidate a database of safai
karamcharis -- has been endorsed by the National Advisory Council. The
petitioners believe that the absence of rehabilitation benefits and
arbitrary replacement of open-discharge toilets with bio-toilets will
result in loss of livelihoods for the safai karamcharis. But they remain
hopeful about the progress of the case in the Delhi High Court. The
court, they believe, has given them a space to talk. They had six
hearings between August and December 2012.
Stiffening the legal whip?
Manual scavenging is an assault on the dignity of safai karamcharis.
The earnestness of the judiciary in the last decade to readily confront
the issue and whip state governments and ministries into action has been
appreciated. Although the interventionist attitude of the Supreme Court
waned after the initial years of the petition, the last two years have
seen a revival of interest. Recent examples of a stiffening of the legal
whip include a district magistrate being reprimanded for filing an
affidavit that falsely claimed the absence of manual scavenging in his
jurisdiction. And the Supreme Court’s arm-twisting of the Centre to
enact the law against manual scavenging that’s pending as a Bill before
the Parliamentary Standing Committee of Social Justice and Empowerment.
Advocate Khanna believes that the slow pace of the case in the
Supreme Court could be attributed to the large number of respondents
(state governments, departments, ministries) that the court has to deal
with, insufficient number of hours the Supreme Court of India devotes to
public interest litigations, and the invisible nature of manual
scavenging, in that people do not think about the issue.
Khanna believes that the arguments of the case have not only moved
the Supreme Court but have shocked them. Therefore, each time the bench
of judges changes the story begins from scratch. On more than one
occasion the court, surprised that dry latrines are not obsolete, has
burdened the petitioners with gathering more evidence. The petitioners
(Wilson Bezwada’s Safai Karamchari Andolan) have taken such orders in
their stride and returned with proof. They were even surprised to see a
judge educate his colleague about manual scavenging based on a
documentary the judge had watched. Such surprises, coupled with the
judge’s keen interest in the matter, often catalyse the interpretative
exercise inside the courtroom.
The petitioners’ objective has always been to uncover an area of
rights violation that has been rendered invisible by society and polity.
It is important to first openly acknowledge the issue to be able to
assess, budget and eradicate it. The continuing practice of manual
scavenging in the Indian Railways assists the social ostracism these
people face and stops them from assuming their full role as citizens of
India.
Advocate Khanna, having fought on behalf of the petitioners for over
six years in the Supreme Court, withdrew from the case in 2011. She
remains optimistic and continues to represent the petitioners in the
high court case against the Indian Railways. As she awaits the next
hearing, in January 2013, she is prepared to re-invent the wheel yet
again and smilingly notes: “Now the bench of judges will change again.”
