Feb 25, 2013
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.
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.
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.
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.”