Exempting Equality: A Critical Analysis of the Legal Framework and Implementation Gaps in the Eradication of Manual Scavenging in India

The PEMSR Act was a big step in the right direction legislatively; however, it has failed to provide substantial relief to the people who are still compelled to do such degrading work.

Introduction

Manual scavenging is still going on in India despite the fact that it is banned under the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (1993 Act) and the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (PEMSR Act). In Tamil Nadu, the Dalit people are still forced to clean sewers, septic tanks, and drains in very dangerous and exploitative ways. Among the public agencies, the Tamil Nadu Water Supply and Drainage Board (TWAD) and several Municipal Corporations that are in need of work usually depend on workers who are not skilled, are on short-term contracts, and are employed through informal or illegal contractor arrangements without proper knowledge. These workers are put in hostile environments that contain toxins without any prior training and are not given any safety gear. This makes them vulnerable to fatal risks such as hydrogen sulphide poisoning, infections and injuries. The cases of death due to work in sewage and septic tanks are rarely reported, thus the State is able to escape its liability. One of the main structural issues that allows the continuance of exploitation is the “power to exempt” clause — Section 4 of the 1993 Act and Section 39 PEMSR Act — which provides for the State Governments to release the protected classes from the Acts provisions. This loophole has been misused time and again so that dangerous sanitation work can be carried out under the pretext of the need for administration. This research puts forward the view that the existence of manual scavenging in Tamil Nadu is not only due to the failure of administration and law but also represents the caste violence that has been institutionalised and is kept alive by weak enforcement, State apathy, and outsourcing of sanitation without accountability. The report emphasises the need for structural changes, increased legal accountability, and the formalisation of sanitation workers with the provision of their rights to dignity and

Understanding manual scavenging and its legal framework

The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 — Overview and structural deficiencies

India’s first Central Act meant to end the dehumanising practice of manual scavenging and ban the building or maintenance of dry latrines was the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993¹. Originally applying just to six States, Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura and West Bengal, and all Union Territories, the Act was enacted under Article 252 of the Constitution. Other States could adopt it via legislative resolutions. The Act classified the work of manual scavengers and the building of dry latrines as offences but left their ban up to State Government Notification. The Act also allowed for the formation of executive authorities and inspectors, empowered to enforce compliance, encourage rehabilitation, and convert dry latrines into water-seal latrines. It let States design programmes for conversion, building of sanitary latrines, and rehabilitation of manual scavengers, including financial help via Housing and Urban Development Corporation Limited (HUDCO).

Implementation was monitored by committees set up at Central and State levels. Though the sums were small, infractions drew fines or prison sentences of up to one year. Though complaints had to be lodged within three months, which limited access to justice, all infractions under the Act were considered cognizable. The Act also included clauses for rule-making, fee collecting, and safeguarding of good faith actions. The 1993 Act was mostly ineffectual despite these tools because of its conditional and non-uniform application, poor enforcement policies, and absence of a strong rehabilitation structure. It was therefore repealed and replaced with the more thorough PEMSR Act.

The debate on manual scavenging legislation frequently focuses on enforcement problems, while the laws themselves suffer by fundamental legal and institutional inadequacies. The topic of manual scavenging remains a subject of extensive discourse. Although the laws seemingly forbid the activity, the fundamental issue resides in their execution and the inherent defect of the legal structure governing abolition of the practice of manual scavenging. The PEMSR Act² exemplifies this conflict. Section 3 of the 1993 Act stipulates that manual scavenging is forbidden solely “from such date and in such area as the State Government may, by notification, designate”. This indicates that the legislation does not inherently prohibit manual scavenging throughout India. Initially, the Act was not applicable throughout India, and even if a State enacted it, manual scavenging would only be forbidden upon the issuance of a particular notification by the State Government. This fundamentally undermines the statute, permitting the State to postpone enforcement at its discretion.

The Act stipulates that a notification under Section 3 may only be issued upon the fulfilment of three conditions: a 90-day notice period, the provision of sufficient water-seal latrines, and a governmental assessment deeming the ban essential for public health or environmental safeguarding. This prompts essential questions. In what manner might the end of a cruel practice be rendered contingent? If manual scavenging is a grave infringement of human dignity and exemplifies caste prejudice, why should its prohibition be contingent upon the preparedness of infrastructure? The State has a constitutional obligation to enhance the living standards of its citizens,³ if the Government asserts that the transition necessitates time, it should have facilitated this change prior to the Act’s implementation. Also, Section 3(2)(iii) asserting that the prohibition should depend on its “necessity or expediency for public health” is fundamentally flawed, manual scavenging consistently endangers life, health and human dignity. This is not merely an environmental concern: it is a social outrage that necessitated quick and unequivocal elimination, rather than a conditional one. Section 5 of the 1993 Act pertaining to the nomination of executive authorities further undermines the legislation. It specifies that these authorities shall “to the extent feasible, endeavour to rehabilitate” individuals involved in manual scavenging. The expression “try to rehabilitate” suggests that rehabilitation is optional, and no definitive rights or entitlements are conferred to the individuals impacted. It imposes no binding responsibility, so diminishing rehabilitation, a vital aspect of justice, to a mere discretionary administrative act.

Section 18 of the 1993 Act prohibits courts from recognising violations unless the complaint is submitted within three months of the complainant becoming aware of the offence. This provision is highly problematic, particularly for Dalit workers who experience severe caste-based marginalisation and may lack awareness of their legal rights or fear retribution. In Tamil Nadu, the Arunthathiyar⁴ community, akin to the Chamars⁵ of Uttar Pradesh and the Madigas⁶ of Andhra Pradesh and Telangana, has been disproportionately impacted by this practice. At the time of the Act’s enactment, a minimal number of individuals from these communities were cognizant of its existence. A temporal constraint on reporting violations subverts the fundamental objective of the law and deprives vulnerable individuals of necessary protection. Section 20 provides immunity for conduct undertaken “in good faith”, so enabling the Government and its officials to evade accountability for their acts or omissions. Although, such protections are customary in administrative law, they may be readily exploited in this context to evade accountability for negligence, non-implementation, or abuse of authority.

The PEMSR Act, 2013: Overview and continuing limitations

The PEMSR Act represents a notable progression from the previous 1993 Act. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act primarily aimed to prohibit the building and utilisation of dry latrines and the employment of manual scavengers for their maintenance; still, it was constrained in scope and deficient in enforcement. The PEMSR Act expanded the concept of manual scavenging to encompass not only those who clean dry latrines but also anyone engaged in the hand cleaning of septic tanks, sewers, and railway lines without protective equipment. Significantly, it transitioned the emphasis from simple prohibition to rehabilitation, requiring the identification of manual scavengers and offering them skill development, financial support, and alternative employment opportunities. The PEMSR Act rendered the practice a serious offence, imposing stiffer fines for infractions, and clearly acknowledged the obligation of municipal authorities and contractors to guarantee safe and hygienic working conditions. This legislation embodied a comprehensive, rights-oriented strategy, seeking not only to eradicate a dehumanising practice but also to reinstate dignity and economic stability for the impacted individuals.

The Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013 specifies 44 distinct categories of protective equipment that must be supplied to sanitation workers. Still, the list is not comprehensive, and importantly, the Rules do not elucidate the phrase “employer”. This ambiguity obscures whether the responsibility is with the contractor or the principal employer, usually the local authority or the firm that engages the contractor. The absence of a definitive accountability framework is particularly concerning, as the majority of sanitation workers are temporarily hired via third-party contracts, which further undermines the enforceability of these rights. A fatal incident occurred in Coimbatore, where an individual was observed entering a drain without any protective gear. Despite the distribution of protective gear by the local Municipal Corporation, workers either refrained from utilising it due to discomfort or had not got the kits altogether. The man apparently entered the manhole to clear a blockage, inciting widespread outrage. Authorities commenced an investigation; despite, this case states the inadequacy in guaranteeing both a reliable supply and appropriate utilisation of safety devices.⁷

A significant deficiency of the PEMSR Act is the lack of a victim compensation provision. The Employees’ Compensation Act, 1923 provides certain protections under Section 38 and Schedule II for individuals cleaning sewers and septic tanks; however, Schedule I neglects to address significant health concerns affecting sanitation workers. Conditions such as hepatitis A, leptospirosis, dermatitis, chronic respiratory infections, and spinal problems are excluded from compensation, resulting in injured workers and their families without recourse.⁸ Legal constraints get worse by persistent caste discrimination. Section 10 PEMSR Act limits the potential for criminal prosecution, neglecting the deep-seated marginalisation of Dalits, who represent the predominant portion of manual scavengers. These persons frequently remain unacknowledged by the State, are omitted from rehabilitation programmes, and possess insufficient social capital to advocate for their rights. Manual scavenging endures not by volition, but as a necessity stemming from past caste-based subjugation and economic destitution.

While Section 33 PEMSR Act stipulates the complete mechanisation of sanitation operations and Rule 5⁹ specifies the utilisation of 14 distinct types of machinery, the Rules do not assign the responsibility of providing such equipment to the Government. Conversely, Section 33(2) provides ambiguous assurances of financial aid to facilitate the use of protective equipment. This creates a significant disparity between legislative intent and practical application, although mechanisation is required, its execution is neither financed nor coordinated.

The legal framework is deficient in measures for obligatory training, nevertheless the perilous character of the employment. Rule 6(3)(i), Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013 stipulates that all on-site personnel must get comprehensive training in machinery operation, safety measures and emergency procedures. This training must be renewed every two years and should incorporate updated technologies and methodologies. Still, the mandate is infrequently enforced. The Ministry of Health and Family Welfare is responsible for creating training institutions; yet, in reality, sanitation workers, predominantly unskilled, seldom receive any training prior to being deployed into hazardous areas. Contractors are expected to maintain comprehensive records and exclusively hire trained personnel; however, these protections are predominantly lacking. Financial limitations further impede advancement. In D.N. Banerji v. P.R. Mukherjee¹⁰, the Supreme Court acknowledged that municipal sanitation services are not profit-oriented enterprises, and taxes function as a replacement for capital investment. This observation elucidates why private contractors, frequently functioning with constrained resources, encounter difficulties in mechanising sanitation operations. A feasible option would involve Local Authorities leasing machinery to contractors, enabling trained workers to operate it under supervision, so achieving the mechanisation objectives outlined in Section 33 PEMSR Act.

The recently implemented Occupational Safety, Health and Working Conditions Code, 2020 supersedes multiple prior statutes, notably the Contract Labour (Regulation and Abolition) Act, 1970. The Code expands provisions for contract-based employment but neglects to specifically address the health and safety of sanitation workers, rendering them reliant on the inadequately enforced PEMSR Act. Given the Supreme Court’s decisions in Bangalore Water Supply & Sewerage Board v. A. Rajappa¹¹ and Corpn. of the City of Nagpur v. Employees¹², which establish that sanitation work constitutes “industry”, it is clear that sanitation workers merit equivalent legal recognition and rights as other industrial labourers. This highlights permanent work, health insurance and access to protective gear.

The “power to exempt” provision — A legislative loophole?

Both the 1993 and 2013 legislation give authorities the power to exclude certain locales or groups from their operations by publishing notices in the Official Gazette. According to Section 4 of the 1993 Act, the State Government may exclude individual buildings or certain classes of persons from the protection of its safeguards. The availability of such extensive discretionary power of a fundamentally different nature leads to the question: How can a democratically governed society devoted to equality and human dignity accommodate the possibility of exemptions from a law aimed at eliminating a caste-based practice of oppression? The permission of selective exclusion stipulates not only the negation of the legal instrument’s purpose but also the potential risk of breach of constitutional guarantees, namely, Articles 14 and 17, that is to say, the de facto manifold of untouchability. Thus, in the event of the issuance of any such exemption order, it should be judicially scrutinised for its legitimacy.

Rather than holding the authorities accountable and bringing about the positive change in the lives of manual scavengers, the existence of this clause gives the State an opportunity to shirk its responsibility. This provision works against the spirit of the law. What is even more unsettling is that a similar provision, namely, Section 39, which was present in the PEMSR Act, was retained despite the recognition at that time that manual scavenging results from caste-based oppression. The reversion to this exemption power for the second time after twenty years makes one question the legislature’s commitment to eradicate manual scavenging.

For example, consider if the Child Marriage Prohibition Act permitted a State to remove Rajasthan from its scope, or if the Sati Abolition Act allowed Bihar to withdraw, would this not undermine the fundamental intent of the legislation? The exception clause in the PEMSR Act remains unchanged. It permits arbitrary exclusion from legal protections, undermining its moral and constitutional basis.¹³

Manual scavenging in India: Persistent failures and the judiciary’s relentless pursuit of justice

In many parts of India, manual scavengers are killed because of poor enforcement and inadequate training. In Gujarat, five workers were killed between the months of March and April 2023, despite the fact that mechanised equipment was available but was not being used. Contractors were still sending workers who were not trained into septic tanks and sewers without safety gear and thus were exposing workers to the risk of death because of the deep failures in oversight and the lack of accountability of contractors.¹⁴

In the same way, the 12 deaths that occurred in May 2023 in Delhi and Uttar Pradesh are the result of a similar situation of neglect of the system. In Noida, two daily-wage workers died from inhaling toxic fumes because they were cleaning a septic tank and had not received any training. In Delhi’s Rohini area, two men cleaning a sewer near a mall died of suffocation caused by a lack of basic protective equipment. These deaths prove that even in large urban centres the safety of work is not taken seriously and the provision of safety measures is always ignored.¹⁵

Rehabilitation has not been successful either. Although the Government claims to have identified 58,098 manual scavengers through surveys conducted in 2013 and 2018, many of them still continue to do dangerous jobs even though they have received one-time assistance of Rs 40,000 under the Self-Employment Scheme for Rehabilitation of Manual Scavengers (SRMS). The main problem is not the money given as relief but the lack of permanent alternative livelihoods and real skill development.¹⁶

As of now, only 508 out of 766 districts have declared themselves free of manual scavenging, which means that the practice is still going on in many areas. As per The Hindu, often, equipment is given out without the necessary training, there are laws but no enforcement, and the rehabilitation schemes that are put into place do not guarantee the real transition of the livelihood. The PEMSR Act and the Occupational Safety, Health and Working Conditions Code, 2020, are not being implemented properly due to bureaucratic indifference, poor contractor regulation and ineffective.¹⁷

Legal push to end the inhuman practice: Courts versus manual scavenging (2014-2025)

The Indian judiciary has been instrumental in safeguarding the rights and dignity of manual scavengers, frequently intervening to enforce or enhance legislative intent in the absence or ineffectiveness of executive action. The subsequent significant judicial cases exemplify the progressive judicial dialogue regarding manual scavenging and underscore the court’s endeavours to eliminate this inhumane activity through robust moral and legal imperatives.

In Safai Karamchari Andolan v. Union of India¹⁸ by the Supreme Court marked a significant turning point in the fight against manual scavenging. The Court acknowledged manual scavenging as a severe infringement of fundamental rights as delineated in Articles 14, 17, 21 and 23 of the Constitution. It required a payment of Rs 10 lakhs as compensation to the families of those who perished while cleaning sewers or septic tanks, irrespective of their job status (contractual or permanent). This case emphasised governmental accountability and mandated extensive rehabilitation for all recognised manual scavengers.

The Supreme Court in Balram Singh v. Union of India¹⁹ issued a succession of progressive rulings targeting the complete elimination of manual scavenging. On 20-10-2023, the Court issued 14 detailed directives to the Union/State Governments, including, elevation of the compensation for sewer and septic tank-related deaths to Rs 30 lakhs, set a compensation of Rs 20 lakhs for permanent disabilities, and at least Rs 10 lakhs for other kinds of disabilities, besides comprehensive rehabilitation of the victims and their families, including education, employment and skill development. Besides that, the Court ordered setting up a national platform to monitor sewer deaths, compensation, and rehabilitation invoking Dr B.R. Ambedkar’s core values of dignity and fraternity. In a subsequent order dated 29-1-2024, the Court banned manual scavenging and the manual cleaning of sewers in six metropolitan cities, Delhi, Mumbai, Kolkata, Chennai, Bengaluru, and Hyderabad, requested Chief Executive Officers (CEOs) (Municipal Corporation) of the cities to submit compliance affidavits and expressed strong displeasure at the Union’s misleading affidavit about “manual scavenging-free” districts. The judicial intervention here is a turning point in terms of the Court’s expectations regarding accountability and enforcement.

The Punjab & Haryana High Court initiated suo motu case (Court on its Own Motion v. Union of India²⁰) over a manual scavenging event at Panjab University. The Court, presided over by Chief Justice Sheel Nagu and Justice Anil Kshetarpal, inquired how such a transgression could transpire notwithstanding the prohibition. Panjab University guaranteed adherence to the Supreme Court’s directives in Dr Balram Singh’s case²¹ and vowed that no similar incidents will recur. The Karnataka High Court, in a suo motu public interest litigation (PIL), Registrar General v. Union of India²², articulated its distress at the persistent occurrence of manual scavenging and the “zero conviction rate” inside the State. Chief Justice Prasanna B. Varale and Justice Krishna S. Dixit admonished State authorities for their negligence, questioning why all responsibilities fall on the courts. The Court underscored the responsibilities of investigating officials, Public Prosecutors, and adjudicating authorities in the pursuit of justice. It advocated for the resolution of caste-based discrimination through the appropriate application of Section 3(j), Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It condemned the State’s bureaucratic sluggishness, questioning the inability to disburse cash for the acquisition of mechanised equipment. The Court additionally consolidated another case concerning school pupils compelled to clean toilets, thereby broadening the investigation into institutional negligence.²³

Conclusion

Although manual scavenging is explicitly prohibited under the 1993 Act and the PEMSR Act, it is still carried out in India. The Dalit communities are the most adversely affected by this practice.

The most critical flaw of the PEMSR Act is the “power to exempt” Section 39, which gives the Government the authority to exempt particular activities and areas from the Act’s protections. This escape hatch from the law renders its enforcement inoperative and makes it possible for the sanitation industry’s exploitation to continue. Further trouble spots, such as the vaguely defined liability of the employer, insufficient mechanisation, lack of the required skills and necessary protective gear, denial of data, and the encouragement of the workers’ irresponsibility by the contractors, deepen the workers’ exposure to risk. On one hand, courts have been trying to enforce accountability through cases like Safai Karamchari Andolan²⁴ and Balram Singh²⁵. However, implementation of the law at the local level remains unsteady and feeble.

The PEMSR Act was a big step in the right direction legislatively; however, it has failed to provide substantial relief to the people who are still compelled to do such degrading work. Afterall, abolishing manual scavenging requires not only administrative reforms but also a more profound constitutional commitment to the principles of equality, dignity, and fraternity that are enshrined in Articles 14, 17, 21 and 23 of the Constitution. Without such political will and moral strength, India will not be able to get rid of this terrible.