Atreyee Mukherjee and Bhavya Nigam*

Source : Down to Earth

Manual scavenging persists in India despite the enactment of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. An article in The Hindu highlighted the plight of ‘seasonal sanitation workers’ desilting stormwater drains in Mumbai, with the Brihanmumbai Municipal Corporation (BMC) denying responsibility for their safety. The BMC argues that these workers fall outside the Act’s definition of ‘manual scavengers’ as they work in ‘stormwater drains’ rather than ‘sewers,’ while also outsourcing such work to contractors to evade accountability. This piece critiques the unconstitutional differentiation between stormwater drain cleaners and sewage cleaners under Article 14. It argues that the BMC’s outsourcing cannot absolve it of liability for fundamental rights violations under Articles 17, 23, and 24. Further, it advocates for broadening the Act’s definitions to include all hazardous cleaning work. It contends that even with protective gear, allowing manual scavenging undermines the Act’s goal to abolish the practice. Finally, the paper calls for legislative reform and active intervention to address these systemic issues.

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Protection of the law often evades the poor under the garb of technicalities. The workers engaged in desilting stormwater drains in Mumbai have fallen upon a similar fate. Nearly 4000 workers are employed every year by the municipality through contractors to clean stormwater drains. Often, these drains contain sewer water as they overlap with the city’s sewage system and workers are frequently left to unclog the drains with their bare hands.

The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act 2013 (“The Act”) forbids the employment of workers for directly or indirectly dealing with human excreta without protective equipment. However, stormwater drain cleaners are unable to claim the benefits provided under the Act. This is because, despite numerous protests by trade unions, the BMC shirks accountability by conveniently misidentifying these workers as ‘seasonal sanitation workers’ instead of ‘manual scavengers’. The narrow definitions of manual scavenger and hazardous work in the Act allow for such evasion perpetuates caste-based discrimination.

In light of the same, Part I analyses the basis of this differentiation and argues that it is unconstitutional as it breaches Art. 14 of the Constitution as there is no intelligible difference between manual scavengers and storm water drain cleaners. Further, Part II both rebuts the BMC’s contention that sole liability should be placed on the contractors while demonstrating the BMC’s liability due to their grave violations of fundamental rights, specifically under Arts. 17, 23, and 24 of the Constitution. Additionally, it highlights the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, which guarantees specific legal rights to migrant workers, thereby reinforcing the BMC’s accountability. The Mumbai Municipal Corporation Act is also  analysed to uncover the BMC’s deeper role in condoning such human rights violations.

Part III argues that the Act’s restrictive, location-specific definitions exclude many workers who are employed in hazardous cleaning and advocates for expanding the Act’s definitions to focus on the nature of the work regardless of the workplace, to ensure broader legal protection. Part IV discusses how the caveat of protective gear as per the Act contradicts the goal of the Act, which is to prohibit manual scavenging entirely. Lastly, Part V argues that the means to ensure that manual scavenging is reformed is through active legislative action and reform. It is necessary to redefine manual scavenging to exclude all forms of the activity, even those with safety precautions since this loophole perpetuates the practice and diminishes the dignity of workers.

Misclassification of Workers and Violation of Art. 14

Art. 14 of the Indian Constitution bars the State from denying someone equal protection under the law or equality under the law. In order for the State to legally differentiate between two categories of individuals, the classification must be based on an intelligible differentia and a rational nexus. While classification may be based on various factors, such as geography or occupations, it must maintain a nexus with the object of the Act under consideration. The essence of the test lies in determining whether the law creates an arbitrary classification by examining the justification for treating individuals differently.

Here, the BMC has created a differentiation between the cleaners of the stormwater drains and the manual scavengers. The misclassification is justified by arguing that hazardous cleaning, as defined under §2(d) of the Act,is limited to work performed in ‘sewers’ or ‘septic tanks,’ excluding stormwater drains from this category. However, this is a fallacious contention to make.

Firstly, there is no real separation of the sewer line and the stormwater drainage system in Mumbai. The definition of ‘sewer’ under the Act encompasses an underground conduit containing ‘other waste matter and drainage wastes,’ which undeniably includes stormwater drains. Therefore, stormwater drains logically fall within the ambit of ‘sewers’ in light of their practical intersection.

Secondly, the work performed by cleaners of stormwater drains is virtually indistinguishable from that of manual scavengers. These workers descend into dark, often hazardous manholes with minimal to no protective equipment, exposing themselves to life-threatening conditions. The stormwater drains, particularly in densely populated commercial areas, accumulate significant waste, including human excreta due to the overlap between the city’s sewer and drainage systems. This results in workers frequently coming into contact with sewage and sullage inflows, mirroring the work of manual scavengers. Tragically, many deaths among these workers are caused by the inhalation of toxic gases—a peril that manual scavengers also face when entering sewers. Given the similarities in the nature and risk of their work, the BMC’s classification of these workers as “seasonal sanitation workers” rather than manual scavengers is baseless.

Therefore, this differentiation lacks any intelligible differentia and fails to establish a rational nexus with the objectives of the Act and thus, constitutes arbitrary administration of the law and violates Art. 14 of the Indian Constitution.

Breach of other Fundamental Rights & Accountability of the BMC

The  BMC has attempted to distance itself from the accountability of these workers by blaming the contractors. This endeavour is reflected even in the rules provided in the tender notices for desilting stormwater drains. §39(d) of the General Conditions of the Contract specifies that the employees of the contractor “shall not be treated as employees of the BMC at any time”. The contractor has also been provided with the full responsibility of the safety of the workers.  Further, under §15, the contract specifies that the contractor is to be held fully responsible for any breach of labour law enacted by the Centre or State legislature. Even so, the BMC cannot avoid liability for these workers under the shield of these provisions. This is because the current scenario presents a violation of Arts. 17, 23 and 24 of the Constitution and the State is obligated to take appropriate action to stop such violations, even if done by private persons. 

Art. 23 of the Constitution prohibits forced labour. In Balram Singh vs. Union of India, the Supreme Court noted that ‘forced labour’ refers to all forms of employment that ‘offend human dignity’. Art. 23 stands violated when proper protective gear, safety equipment and cleaning tools are not provided to workers engaged in hazardous cleaning activities. The present situation is a clear example of the same. The workers often clean the stormwater drains with their bare hands. The toxic gases present in the drains often asphyxiate the workers, leading to their deaths.  Secondly, the people engaged as cleaners of stormwater drains are usually those from the lowest rung of the caste hierarchy. Traditionally, Dalitshave been forced to engage in these menial cleaning tasks. The systemic oppression of manual scavengers, recognised as an atrocity under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, underscores the intersection of caste oppression and hazardous labour. As a result, hazardous cleaning, such as the present case, has been held to be an example of untouchability, which is prohibited by Art. 17 of the Constitution.    

Lastly, there have been numerous reports of children, especially boys aged 8–13, working to manually clean Mumbai’s drains. Children are often assigned the task of desilting drains because of their small bodies, which allows them to easily slide into the small openings of covered drains in order to gather debris and silt. This blatantly violates Art. 24 of the Constitution, which forbids hiring minors younger than 14 years for any hazardous work.  

In People’s Union for Democratic Rights v. Union of India, the Supreme Court held that a body of the State cannot give up in hopelessness and watch helplessly while its own contractors violate fundamental rights. It cannot take shelter behind the contention that the breach was committed by its contractors. It is, thus, the BMC’s responsibility to frame a suitable mechanism to hold contractors accountable when hazardous cleaning is outsourced.  

Notably, the BMC’s failure in execution does not stop at blithe ignorance. They have also directly contributed to the breach of workers’ rights. §239 of the Mumbai Municipal Corporation Act, 1888, obligates the BMC to have separate drainage systems for stormwater and sewage. This has not been implemented. Therefore, this failure of execution, the convenient misclassification of these workers, and the refusal to recognize the stormwater drains as sewers demonstrate the BMC’s deeper role in the condoning of inhumane working conditions for these labourers. It has disregarded the State’s obligation to guarantee the total eradication of manual scavenging and ought to be held accountable for it.

Furthermore, there have been reports of inter-state migrants who have suffered severe injuries or fatalities while engaging in hazardous desilting operations during the annual pre-monsoon Mumbai cleanup. These incidents underscore the grave risks associated with such work, particularly when proper safety measures are neglected. In such instances, the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 also paves the way for pinning direct accountability on the BMC. §18 of this Act places an obligation on the principal employer when the contractor fails to provide protective gear to the workmen. Therefore, in all instances where contractors have failed to equip inter-state migrant workers with protective gear, the BMC can and should be held directly liable.

Thus, the BMC cannot evade accountability for the inhumane conditions faced by the stormwater drain cleaners. By outsourcing hazardous cleaning without enforcing safety standards, it has enabled violations of Arts. 17, 23, and 24 of the Constitution. Judicial precedents confirm that the State cannot escape liability by blaming contractors. Further, its failure to implement separate drainage systems and protect inter-state migrant workers underscores its neglect. The BMC’s actions reflect not just negligence but a disregard for fundamental rights, demanding urgent accountability and reform.

Expanding the definition of Hazardous Cleaning and Manual Scavenging

The situation in Mumbai clearly demonstrates the systemic issues within the Act that pave the way for the misclassification and exclusion of many workers who engage in equally hazardous cleaning. The Act provides an exhaustive and restrictive definition for the categories of workers that can be classified as manual scavengers. According to §2(e), only cleaners of insanitary latrines, pits, open drains, and railways cleaners can be manual scavengers. Even ‘hazardous cleaning’ is restricted to the handling of faecal sludge handlers working in a sewer or septic tank.  However, these definitions are too location-specific, excluding many workers engaged in the same dangerous and degrading labour simply because they work in locations not explicitly mentioned in the law.  Just like cleaners of stormwater drains, even domestic workers and community and public toilet keepers often deal with faecal matter and sewage. However, the restrictive definitions of hazardous cleaning and manual scavenging under the act prevent them from being covered under it. This approach fails to recognize the reality of manual scavenging — it is not the place of work that defines the exploitation but the nature of the labour itself.

The State should adopt a more expansive definitions within the Act, focusing on the task of cleaning, carrying, or disposing of human excreta, regardless of whether this takes place in an open drain, a sewer, a latrine, or even a private household.Notably, the Act is a socially beneficial legislation and is required to be implemented in letter and spirit. Courts have consistently held that beneficial legislation must be interpreted purposively to extend protection to those it seeks to safeguard. The Supreme Court reaffirmed this stance in KH Nazar v. Mathew K Jacob, emphasising that a beneficial legislation must be interpreted with a purpose-oriented approach, rather than relying on a strictly literal construction. Applying this principle to the Act, the definitions of hazardous cleaning and manual scavenging should be read expansively by Courts to include all workers engaged in the handling of human excreta, irrespective of the specific location of their work. By clinging to an exhaustive list of places, the Act leaves out several other workers who similarly deal with faecal matter, perpetuating their vulnerability. A purposive reading, as mandated by judicial precedent, would ensure that the Act serves its intended purpose of eradicating manual scavenging in all its forms.

It is undeniable that the data surrounding workers engaged in this kind of work is severely underestimated. There is a vicious cycle of poverty and societal discrimination that forces individuals to engage in this kind of menial work. It is discriminatory for some to be excluded from legal protection when their nature of work remains the same. By purposively interpreting the Act and changing these definitions, we can ensure that no worker is left behind due to a legal technicality and more workers benefit under the protective ambit of the Act.

The Question of Protective Gear

Courts in India have expressed discontent with the persistence of manual scavenging, recognising it as a means of re-enforcing the caste system. The conditions of work have been equated to that of death traps. Courts have discussed the need of providing modern methods of scavenging to workers, such as protective gear that prevent direct contact with the human excreta. However, these interim measure fail short of addressing the systemic issue at its core.

The Act, ostensibly seeks to eliminate this practice. However, the Act through §2(d) and  §2(g)(b) allow manual scavenging if ‘protective gear’ is provided, thereby undermining its intent. This conditional allowance dilutes the objective of the Act and inadvertently legitimizes manual scavenging, shifting focus from its abolition to its regulation.

§33 of the Act mandates local authorities to employ appropriate technological appliances for cleaning sewers and septic tanks. The Bandicoot robot, specifically designed for cleaning sewer lines, has been found to offer an alternative to human intervention. Notably, the Bandicoot can clean 10 manholes in a day compared to 3-4 by humans, which developers estimate can lead to a saving of around Rs 8,000 a day. Its cost-effective variant, the Bandicoot Mini, further ensures accessibility to smaller municipalities. Such innovations enable a complete shift away from manual scavenging, aligning with the dignity of labour and the constitutional mandate of human dignity. Many cities have already begun acquiring Bandicoot robots to do away with manual scavenging. However, the widespread adoption of this technology is hindered by systemic inertia.

The argument that manual scavenging is permissible with safety gear assumes that protective equipment adequately mitigates health risks and preserves dignity. Yet, this assumption is counterintuitive. It has already been demonstrated that workers often operate without adequate protective gear, and the very design of many sewers precludes effective mechanical intervention. Thus, this allowance neither addresses the hazardous nature of the work nor aligns with the legislative intent to abolish manual scavenging entirely.

The guidelines laid down by the Supreme Court in Balram Singh v. UOI and the constitutional prohibition on untouchability, by virtue of Art. 17, mandate that Centre and the States are dutybound to make sure that manual scavenging is completely eradicated from India.  The transition to technology-driven alternatives, such as the Bandicoot, is not merely a logistical challenge but a moral imperative. While such a transition necessitates significant investment and systemic reform, these costs cannot justify the continuation of a practice that dehumanizes individuals and perpetuates caste-based oppression. The goal should not be the conditional allowance of manual scavenging but its unequivocal prohibition, ensuring that all human intervention in waste management is replaced with dignified, mechanized solutions.

Legislative Reform as the Way Forward

Legislative reform is essential for effectively eradicating manual scavenging, but it must be complemented by judicial intervention to ensure proper implementation and expansive interpretation of the protections available. There is already a plethora of legislative frameworks that exist dealing with manual scavenging, but there are problems that continue to persist. They continue to keep the definition of manual scavenger too broad and continue to ignore the glaring problems that continue to subsist.

Advisories have been issued that argue for granting protective gear, worker-friendly technology, welfare schemes and enhancing accountability. However, manual scavenging—a prohibited act—remains widespread. Prosecutions under the law have been abysmally low, reflecting administrative lethargy despite the Act classifying manual scavenging as a cognizable and non-bailable offence.

To address these gaps, legislative amendments must incorporate necessary changes at both municipal and central levels. Stringent monitoring and auditing mechanisms should be in place to ensure action against violations. At the same time, the judiciary must play an active role by enforcing accountability, interpreting the law in a manner that maximizes worker protection, and directing the State to take concrete measures to eliminate manual scavenging in both policy and practice.

*Atreyee Mukherjee and Bhavya Nigam are third year law students at the West Bengal National University of Juridical Sciences. They have a keen interest in labour law, human rights law and public international law.