A constitution amid dire straits
IT is a steep climb to inclusive constitutionalism. Three narratives spin real-life tales of law, practice and possibility. They speak of those who may make it, and those who certainly cannot, not unless the world is turned upside down, anyway.
The easy pragmatism that has de-prioritized the ending of slave-like conditions of bonded labour is a chilling constitutional fable. The determined bid to end manual scavenging is a tale tinged with optimism. The anti-beggary law is a sordid tale of disrespect for human life and an abandonment of constitutional norms.
There are laws that are relevant in perpetuity, or till they are repealed or replaced; much of legislation would fit this description. There are others that fade with the passage of time and inhabit the territory governed by the ‘doctrine of desuetude’; it wouldn’t do to just refer to it as ‘death by disuse.’ There are yet others that have immediacy, where it is the moment that is momentous, and the need for the law is intended to be finite; that is, the problem is to vanish.
The Bonded Labour Act 1976 is such a law. Deriving constitutional authority from Article 23 which, as a ‘right against exploitation’, prohibits ‘traffic in human beings and begar and other forms of forced labour’ declares: ‘On the commencement of this Act, the bonded labour system shall stand abolished and every bonded labourer shall, on such commencement, stand freed and discharged of any obligation to render any bonded labour.’1
In the hereafter, and with immediate effect from when the Bonded Labour Act commenced, ‘Any custom or tradition or any contract, agreement or other instrument (whether entered into or executed before or after the commencement of this Act), by virtue of which any person, or any member of the family or dependent of such person, is required to do any work or render any service as a bonded labourer, shall be void and inoperative.’ The liability to repay the bonded debt was extinguished. No ‘creditor’ was to accept payment against the extinguished debt on pain of punishment that may extend to three years imprisonment or fine. That’s it. The system is ended, never to be revived. That is the legislative imperative.
Of course, bonded labour has not vanished. Denial continues to be an obstacle in dealing with the fact of the exploitative systems of labour and bondage. The case that is prominent amongst the building blocks of public interest litigation (PIL)2 has moved to the National Human Rights Commission3 – shifted from fundamental rights to human rights – where it rests among many unresolved injustices. Swami Agnivesh continues to strive for recognition of non-payment of minimum wages as a marker of bondage. Pragmatism, which trains the eye not to see, and cynicism which takes value out of every legitimate concern, turns illegality and unconstitutionality into mere fact. And bonded labour flourishes as fact, deliberately unseen, lying vanquished after a battle for recognition, now back in denial. The immediacy of the law has been revised to make it merely aspirational.
The case for the manual scavengers was no different, not at the beginning anyway. In 1950, Article 17 of the Constitution declared: ‘Untouchability is abolished and its practice in any form is forbidden.’
In 1993, deriving its authority from Article 252 (1) of the Constitution that allows Parliament to make law on a state subject,4 and armed with resolutions passed in the legislatures of Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura and West Bengal, Parliament enacted the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993.
Decades after the Constitution had been promulgated, the government had to acknowledge that ‘the dehumanising practice of manual scavenging of human excreta still continues in many parts of the country’; ‘the municipal laws by themselves... are not stringent enough to eliminate this practice’; ‘it is necessary to enact a uniform legislation for the whole of India for abolishing manual scavenging by declaring employment of manual scavenging for removal of human excreta an offence and thereby ban the further proliferation of dry latrines in the country’; and ‘it is desirable for eliminating the dehumanising practice of employment of manual scavengers and for protecting the human environment to convert dry latrines into water-seal latrines or to construct water-seal latrines in new constructions.’ So the law was made.
The same year, and a few months later, a law was enacted to establish the National Commission for Safai Karamcharis, which defined ‘safai karamchari’ as ‘a person engaged in, or employed for, manually carrying human excreta or any sanitation work.’ The point that this setting up of a commission served is moot, and may be sidestepped for the moment. Yet, as Parliament’s acknowledgment of an unacceptable condition, the National Commission for Safai Karamcharis Act 1993 was significant.
The 1993 Acts gave language and legislative recognition to the perpetuation of manual scavenging and the continued existence of dry latrines. They acknowledged that this was a ‘dehumanising’5 and ‘obnoxious practice’, which is a ‘continuing stigma on our social fabric.’6 The consequent untouchability was an unspoken presence.
There was already the work that Bindeshwar Pathak was doing on sanitation, as also Ishwarbhai Patel, that would eventually have the consequence of doing away with manual scavenging. In the mid-1990s, S.R. Sankaran recounted in a recorded conversation held on 14 September 2010,7 that following upon discussions with Bezwada Wilson, the drive to aim for the eradication of this execrable practice took over the imagination. It guided their steps to Vijayawada where, some time in 1995-96, a meeting was called and members of the community attended and spoke.8 The next meeting was in Hyderabad where Narayanamma, who worked as a manual scavenger in a 400-seater dry latrine in Anantapur, spoke with a simplicity that hit home: ‘We are born in this caste. We are doing this because we have no alternative. Do you think we want to do it? It is forced on us.’
This meeting involving about 150 people had a cascading effect. It was still confined to Andhra Pradesh, but the tactics and strategies that were to expand to the rest of the country began to be set. Survey forms recorded the person, the practice and the place. Government officers were drawn into the ambit of action; that S.R. Sankaran was a retired officer of great repute helped excite the attention of the bureaucracy. Around this time it was decided that the Safai Karamchari Andolan (SKA) should be a movement. It would focus on the eradication of manual scavenging, which included the destruction of dry latrines.
This was to be a movement, not a registered organization with its attendant formalities. It was a mobilization effort from within the community. A padayatra was undertaken that visited 23 districts. Dry latrines were demolished along the way. In Anantapur, S.R. Sankaran spoke to the Collector who then himself had the dry latrines demolished. The padayatra moved on and there were close to 1000 people when it concluded in Hyderabad, where there was a ceremonial burning of a dry latrine.
There is an eye-twinkling moment when the narrative runs to a later time when a dry latrine was spotted in a Munsif Magistrate’s (MM) court. The MM called in the police and said that public property – a dry latrine which existed in defiance of the law, no less! – was being destroyed. Wilson called S.R. Sankaran, asking him how this should be handled. Sankaran told him to get the objections from the MM in writing – and the MM gave it! It was, finally, an order from the Supreme Court that led to the dry latrine being given the crowbar treatment.
Since then, and to date, the movement has grown, focused on the eradication of manual scavenging, not letting its attention veer to issues that press upon its consciousness – not even to sewage workers or to the rehabilitation of those who cease to work as manual scavengers. The only way to put an end to the practice is by withdrawing from the work as manual scavengers – a tough call for people, predominantly women, who have been trained to see this as their traditional role; who face pressure from the community of users of dry latrines; and who are extremely uncertain that any other work will ever be allowed to come their way. Without state support, even subsistence could be in jeopardy.
Yet, it is a striking statement of the nature of the work and the indignity it brought with it that, while the future was still unsecured, women, especially, began to step out and refuse to go back to work. It went further. Many became active in the movement for eradication even before they stopped working as manual scavengers. The sight of women cleaning dry latrines, carrying bucketloads of excreta during the day, and joining the procession for eradication – even leading it – later in the day has been captured on camera and preserved as significant memory.
The issue was taken to the Supreme Court as a case in 2003. This was a carefully crafted strategy, and one that has worked to challenge state denial that the practice exists, to activate the law, and to forge a path to the extinction of the practice. That is another tale waiting to be told.9
The Railways continue to be the most blatant violators of the law, and the case brought this out in the open. Train toilets, as presently constituted, dirty the tracks, and it is to manual scavenging that the public turns to remove the excreta and clean the mess. The Railways, and its officers, have had the impertinence to tell the court that it will be many years before they can replace the present system of toilets with those that will not need the service of manual scavengers.
That the state and its agencies routinely violate this law is merely reinforced by this lawless response. Section 15 of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993 makes the ‘company as well as every person in charge of, and responsible to the company for the conduct of its business at the time of the commission of the offence’ guilty of the offence. That no prosecution has been launched, nor has the Railways changed its system, is a comment on impunity that non-seriousness can introduce to the law.
Yet, 2010 is when it was decided that patience should end. On 29 September 2010, embarking on and travelling all through October, a ‘bus yatra’ starting at five far-flung points on the map of India, has begun moving towards Delhi. Their mission is to make certain that manual scavenging actually disappears. The message bearers are dominated by those who have ceased to do the work of manual scavenging. This is constitutional history in the making.
In the past decade, their enterprise in identifying, surveying, convincing, supporting, representing and negotiating has meant that they have been able to declare some states, and some districts in states, as manual scavenging-free. What is needed is the nudge that will lend power to the movement, and inevitability to the outcome, and this must come from beyond the community. That this yatra must be actively aided to generate. When it is all done and ready to be museumized, that may be the time that hindsight will recognize the significance of the moment. Till that happens, there is a common responsibility that still has to be met.
There is another script that has developed around the theme of intolerance. The idea of begging as nuisance has given way to begging as conduct that is akin to crime. Only, the constitutional protections that accompany investigation, custody, trial and punishment are missing.
The Bombay Prevention of Begging Act 1959 is, as the year suggests, a legislation that was enacted after the Constitution was promulgated. It has acted as a template for other states, with Delhi adopting it as its own since 1960. This is a remarkable piece of legislation, difficult to explain in a constitutional setting. Defining ‘begging’, the act extends it, by definition, to persons ‘having no visible means of subsistence and wandering about or remaining in a public place in such conditions or manner as makes it likely that the person doing so exists by soliciting or receiving alms.’10 Ostensible poverty makes the poor a target of this law.
The law punishes poverty. A person ‘found begging’ may be arrested without a warrant, and so they almost always are. This is followed by a ‘summary enquiry’, after which the person ‘found to be a beggar’ may be detained in a ‘certified institution’ – or a ‘beggar’s home’ – ‘for a period of not less than one year, but not more than three years.’ When a person who has been so detained once is found begging again, they shall be detained ‘for more than three years.’ And every time thereafter, the law requires the court to order detention for a period of ten years. All this by ‘summary trial’.
Arbitrary arrest of the apparently poor, subjected to a summary enquiry and summary trial, and sentenced to long terms in custody. Can it get worse? It seems it can. There are ‘raids’ and the ‘rounding up’ of ‘beggars’. There is nothing in the law prescribing ‘raids’ and rounding up; but there is nothing proscribing it either, and it is the routine that policemen and ‘social welfare’ officers adopt. In 1991, a committee set up by the Bombay High Court accompanied a ‘police squad’ and saw that ‘the arrest is made of the people who are found on the street in dirty clothes and wandering. They are not actually found begging... large number of wrong arrests are made which is inhuman and unjust. ...There is no criterion to decide as to who is a beggar, who is sick, physically handicapped or in need of economic help.’11
Then, the committee was witness to 33 remand cases and 21 new cases in the courtroom: the 21 were all directed to the ‘beggars’ home, and 31 of the 33 were released while two were detained. It was all over in eight minutes.12 If it seems like this is as bad as it can get, consider the ‘inauguration’ of mobile courts by the Delhi Social Welfare, Law and Justice Minister a little over a year ago, which would ‘deliver quick judgment on the caught beggars’,13 a move endorsed by a division bench of the Delhi High Court.14
The vans, in Delhi, carried the identifier ‘Anti-Beggary Squad Mobile Court’, till someone seems to have thought that this was politically incorrect. The ‘anti-beggary squad’ was painted over, badly; the lettering is visible, yet, the overlay of paint can still assist state denial of the antagonism that the words display. The court directed the government to try to send the beggars back to the state from where they had come15 – a statement on citizenship, and the right to move about and reside anywhere in the territory of India.
Poverty, it would appear, produces borders and boundaries, even as events such as the Commonwealth Games deepens rightlessness. A plan to hold the ostensibly poor in two parks in the city, enclosed by CWG banners to hide the shame of extreme poverty, and the detention – without process – of those rounded up was a prelude to the games.16 When the time came, the poor vanished, but without a trace. If they return, maybe we will hear what happened. Or maybe we won’t.
In May 2000, eight persons died in the Lampur Beggars Home in Delhi. The cause: faecal contamination in the water. In Bombay, the ‘death register’ in the Beggars Home for Males in Chembur recorded 19 deaths between April and September 1990. The record in the Female Beggars Home was 55 deaths in 1987-88, 94 in 1988-89, 20 in 1989-90 and 4 in 1990-91.17 In September 2010, the Beggars Home in Bangalore saw a spate of 28 deaths. These are reports that emerge sporadically, indicating a deeper malaise The choicelessness, and helplessness, of those put way in these institutions has nowhere been set off by the responsibility of the administration. Recklessness, heightened risk and impunity are the bricks with which this edifice is built.
In 2006, even as a lawyer’s insistence brought in an era of round-ups and raids and heightened activity in clearing the streets of Delhi,18 another judge of the same High Court was attempting to explain to those who would listen that beggary could, indeed, be not about the criminality of the poor but about ‘a failure of the state.’19 There are twin goals, he said, to the act: ‘nobody should beg and nobody should need to beg.’20 This, however, has been a solitary voice in the wilderness.
It would seem that there are no constitutional restraints on how ‘beggars’ are to be treated. This law is clearly a measure of social control. It criminalizes poverty. It enables unconstitutional detention over long periods of time. In keeping the poor within the zone of illegality, it enables excesses, exclusion and exile. It has accumulated at least 20 years of experience of death, detention and denial of even basic rights. This is no hyperbole. Yet, it remains on the statute books.
This is the Constitution as those in poverty experience it.
1. Section 4 (1) of the Bonded Labour Act 1976.
2. Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161.
3, PUCL v. State of Tamil Nadu WP (Civil) No. 3922 of 1985, order dated 11 May 1997 in the Supreme Court.
4. ‘Sanitation’ is in the VII Schedule, State List, Entry 6.
5. Preamble to the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993.
6. Statement of Objects and Reasons of the National Commission for Safai Karamcharis Act 1993.
7. S.R.Sankaran was an extraordinary civil servant who worked relentlessly on issues that included bonded labour, tribal rights and the resurrection of dignity of the marginalized. He was a core member of the Committee of Concerned Citizens which was the one team of negotiators who had the moral authority to speak to both the government and the People’s War Group. Convinced that that there should be no compromise on the eradication of manual scavenging, he was mentor to the movement, adviser and comrade-in-arms. His one determined hope was to see the end of manual scavenging before this year ran out. He is, however, not here to see what happens, and to help make it happen, having passed away, quietly, on 7 October 2010. He helped conceive, and get started, the bus yatra, which, even as I write, is wending its way to Delhi demanding national attention to the immediate cause of putting an end to the inhuman practice of manual scavenging.
The conversation with him happened a little over three weeks before his demise, and was meant to be the first of many conversations that would construct the biography of the movement.
8. Recorded conversation with S.R. Sankaran on 14 September 2010.
9. Safai Karamchari Andolan v. Union of India W.P.(C) No. 583 of 2003.
10. Section 2 (1) (d) of the Bombay Prevention of Begging Act 1959. My article, ‘Ostensible Poverty, Beggary and the Law’, Economic and Political Weekly, 1 November 2008, pp.33-44, is a detailed look at experience with this law.
11. ‘Report on the procedure followed in arrest of beggars under the Bombay Prevention of Begging Act 1959’, p. 6 in Report of the Commission on Beggars Act, Annexure No.4 in the matter of Manjula Sen v. State of Maharashtra Writ Petition No.1639 of 1990 in the High Court of Bombay.
12. Id. at p.5.
13. ‘Mobile courts to catch beggars’, The Hindu, 1 September 2009, New Delhi.
14. ‘Get beggars off the street, High Court tells Delhi government’, The Tribune, 11 August 2009.
16. ‘Govt.’s novel gameplan: Hide beggars in covered parks during CWG’, Hindustan Times, 10 September 2010 found at http://www.hindustantimes.com/Govt-s-novel-gameplan-Hide-beggars-in-covered-parks/Article1-598320.aspx, visited on 14 October 2010.
17. Supra note 11.
18. The Court on its Own Motion v. In re:Begging in Public, Writ Petition (Criminal) No. 1840 of 2006.
19. Ram Lakhan v. State, Criminal Revision Petition No.784 of 2006 decided on 5.12.2006.
20. Id. at para 6.